In Shift, U.S. Tells Texas It Can't Ignore Court Ruling Barring Bias in College Admissions

By PETER APPLEBOME

Published: April 15, 1997

A month after warning Texas that it could lose Federal financing if it ended affirmative-action programs in its university system, the Department of Education has reversed itself and now says that Texas and two neighboring states must comply with a year-old Federal court decision banning the use of race as a factor in admissions and scholarships.

The change of heart came after Texas education officials found themselves caught between conflicting Education Department and Federal court directives, and after Texas political representatives in Washington had reacted furiously to what they saw as an Education Department directive to ignore a Federal court order banning affirmative action. Separately, Walter Dellinger, the acting Solicitor General of the United States, wrote an unusual retort to the Education Department, saying the appeals court decision banning affirmative action was the law in Texas.

The Education Department's reversal also comes at a time when there are increasing indications that efforts to roll back affirmative action could produce a drop in minority enrollment at prestigious universities and professional schools.

At the University of Texas Law School, for instance, of the 791 students admitted thus far for the fall 1997 class, about 80 percent of the class, just 5 were black and 18 were Mexican-American. Last year 65 blacks and 70 Mexican-Americans were admitted. Undergraduate acceptances at the university, the state's most prestigious public university, fell from 421 blacks and 1,568 Hispanic applicants in 1996 to 314 blacks and 1,333 Hispanic applicants this year.

The change in the Education Department's position on affirmative action in the Texas university system is being viewed as an embarrassment for the department and a setback for critics of the 1996 Hopwood v. Texas ruling in which the United States Court of Appeals for the Fifth Circuit said that Texas and the two other states in its jurisdiction, Louisiana and Mississippi, could not use race as a factor in admissions and scholarships.

The Clinton Administration has been a consistent supporter of affirmative-action policies. Officials with both the Education and Justice Departments now say that they believe the Hopwood case was wrongly decided, but that for now it is the law in the Fifth Circuit.

The mixed signals in Texas reflect the uncertainty nationally about the future of affirmative action. Many experts say the mixed signals make it increasingly important for the Supreme Court to clarify its views on when and in what forms affirmative action is permissible.

Michael Sharlot, dean of the University of Texas Law School, said, ''It's enormously important, not just in the selfish view of Texas, which is just being transformed by following the Hopwood decision, but in terms of how important the question is for the whole country.''

The current controversy began with a March 18 letter to Texas legislators from Norma Cantu, Assistant Secretary of Education for Civil Rights and a former regional director of the Mexican-American Legal Defense Fund.

Earlier, the Texas Attorney General, Dan Morales, had delivered a broad opinion that said the Hopwood decision banned any use of race in admissions and scholarships in the Fifth Circuit. The Hopwood ruling said that the Supreme Court's 1978 Bakke decision, which allowed race as one factor among others, was no longer valid. The Supreme Court declined to hear the case, leaving Hopwood in effect only in Texas, Louisiana and Mississippi.

Ms. Cantu, in a statement that drew widespread skepticism from legal experts, said Hopwood applied only to the facts in place at the University of Texas Law School in 1992 when the suit was filed. And she warned that the Federal Government could cut off $500 million in higher education aid if a planned review of desegregation efforts in Texas by the Education Department found vestiges of segregation and if the state failed to use all possible remedies, including affirmative action, to correct them.

The letter created enormous confusion among state officials wondering how to deal with conflicting positions. Senator Phil Gramm, Republican of Texas, in a letter of his own to Education Secretary Richard W. Riley, said Ms. Cantu's directive had left the state ''in a withering legal crossfire,'' and threatened to hold up financing for the Education Department if Ms. Cantu's letter was not retracted.

''In her zeal to pursue a political agenda, will Ms. Cantu be available to pay the fines and serve the sentence for contempt if she is successful in forcing Texas universities to flout the Federal court's ruling?'' Mr. Gramm's March 27 letter read.

Last Thursday, citing ''confusion'' about the Federal Government's position on the Hopwood ruling, Mr. Dellinger wrote a letter to the General Counsel of the Education Department saying Hopwood was the law in Texas and must be followed.

On Friday, Ms. Cantu reversed herself and wrote State Senator Rodney Ellis, a Democrat, that, absent further legal review, the Hopwood ruling prohibited race-conscious affirmative action for the purpose of insuring diversity.

An Education Department spokesman, Rick Miller, said Ms. Cantu's original letter reflected different court rulings on affirmative action, and though its view of affirmative action in Texas was incorrect, it reflected only a difference of legal interpretation. There was no intended threat to withhold Federal aid, he said. ''There was never a partisan or political agenda,'' he said.

But Terry Pell, a lawyer with the Center for Individual Rights, which filed the Hopwood case on behalf of applicants who did not gain admission to the University of Texas Law School, said Ms. Cantu's letter was an effort to ignore a Federal court order.

''She told them to essentially forget Hopwood and follow Bakke or I cut off your Federal funds,'' Mr. Pell said. ''She was telling them to disobey the law.''

Although the conflict in Texas has apparently been resolved, the controversy only highlighted the different standards nationwide for affirmative action. Though Hopwood applies to Texas, Mississippi and Louisiana, affirmative action is being used in Mississippi and Louisiana under the terms of court orders from desegregation lawsuits. Mr. Pell said that those court orders would remain in effect in the absence of a new legal challenge.

That leaves Texas and California as the two states where affirmative action cannot be used, while it is used widely elsewhere. In California, university regents have prohibited the use of affirmative action, and a statewide initiative, recently upheld by an appeals court, bars racial and sex preferences in government programs.

Several legal or legislative challenges could bring the issue to a head elsewhere. A lawsuit against the University of Washington Law School, brought by the same group that filed the Hopwood case, is viewed as perhaps the most likely to reach the Supreme Court.

Graph: ''KEEPING TRACK -- Admission Offers: Fewer Minorities'' shows an ethnic breakdown of admissions offers for the University of Texas, for Fall 1996 and Fall 1997. (Source: University of Texas Law School)